Fault Lines
20 August 2017

Harmful Harmless Error

Apr. 13, 2016 (Mimesis Law) — It’s called the “harmless error rule,” and if you squint really hard and think like a prosecutor, it almost makes sense.

Consider the trial. Something went wrong.  Really, something always goes wrong.  As Warren Burger explained in US v. Hastings, it’s inevitable.  There’s no such thing as a perfect trial.

[G]iven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial.

Okay, I suppose I can’t really quibble with a rule that says the Constitution does not require that which is impossible. But then what?

So given the imperfection, we know that something went wrong. And the question, the only question once the mistake’s established, is what to do about it.  There are options, sometimes depending on what went wrong, sometimes, well, options:

  • The defendant can be released with the government’s apologies.
  • The defendant can be released with no apology.
  • The defendant can get a new trial where the bad stuff won’t, we hope, happen again.
  • The defendant can get a new sentencing where the bad stuff won’t, we hope, happen again.

All those things are possible. Ernesto Miranda got a new trial.  Without that confession.  (And he was convicted again, which perhaps points to where I’m eventually heading.)  Johnny Paul Penry, who twice had death sentences re-imposed, settled his case with a life sentence after a third reversal.  Ricky Jackson, Wiley Bridgeman, and Kwame Ajamu were released, exonerated, and given millions for their 39 years each in prison and time on death row.  Danny Brown was released, but no apology, no millions, and a cloud over his head as the prosecutor continues her fruitless effort to find evidence that will allow her to retry and reconvict an innocent man.

But they’re also rare. Not rare because error is rare, remember.  Error is essentially ordinary.  They’re rare because – okay, there are a bunch of reasons.  But the formal reason, the excuse reason, is that harmless error rule.

Actually, there are a couple of versions of the rule depending on whether the error at issue was just the ordinary, run-of-the-mill stuff or was CONSTITUTIONAL, by god.  Was it objected to at the time?  Was it raised only in some post-trial proceeding?  The details don’t particularly matter here.  The basic idea is that if whatever went wrong wouldn’t matter, if the error was “harmless” (get it?), there’s really no point in doing anything about it.

The question is how you know when an error is harmless. More precisely, how do judges know?  Oh, there are rules to apply.  If we’re talking federal habeas off a state conviction, the question (once the person claiming error has jumped through a whole bunch of procedural hurdles designed to prevent her from even getting the claims heard) becomes whether the last state court ruling denying relief was such an outlier that no judge who wasn’t delusional could have reached it.*  In other contexts, it’s simply a matter of whether there’s any evidence that could sustain a conviction.  Any evidence that could. Well, gee.  Sure.  Close enough for government work.  If the government is ISIS.

That’s not entirely fair. An Ohio appellate court put it this way:

There is, however, a synergistic relationship between the degree of the error and the quantum of other evidence against the defendant when applying a harmless error analysis. Relatively minor trial errors are harmless so long as there is overwhelming evidence of guilt from other sources.

Which sounds pretty good. (I actually quote it with some regularity in appellate briefs.)  But see, here’s the problem. Who the hell knows?

See, we’ve got this Sixth Amendment thing.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.

And you only get to be found guilty when the jury (twelve good men and true, was the old formulation back when only men got to serve and juries always had 12 of them) said so. Unanimously.  (Though back in 1972, the Supremes said that the Constitution doesn’t require unanimity.)

Or, and now we get to the guts of it, when a judge or three or seven or nine or whatever says,

Well, hell, a jury would have found him guilty, or might have, anyhow. Good enough.

Which essentially means that the Sixth Amendment only counts before anyone notices that the trial was screwed up. Once it’s clear that there was error, then the judgment of a jury no longer matters.  Because, really, judges know what juries would do.  They can just tell.

Of course, once in a while . . .

We cannot know what was going on in the minds of the jurors when they were given the duty of deciding Brooks’s fate,…

The exception, they say, that proves the rule.

Otherwise, you’re not entitled to a perfect trial, only a fair one. And a fair trial is one where you’re found guilty.  Sigh.

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  • Eliot clingman
    13 April 2016 at 10:06 pm - Reply

    In the American common law tradition, appellate judges are specialized in questions of law, not fact. And the harmless error rule requires appellate judges to answer a question of fact.

    What could possibly go wrong?